Opinion
A-22-CV-1367-DAE-ML
11-28-2023
SHERI L. BROWN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DAVID A. EZRA UNITED STATES DISTRICT JUDGE:
This is an appeal from a denial of social security disability benefits. All matters in the case were referred to the Honorable Mark Lane, United States Magistrate Judge, for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules. Before the court are Plaintiff's Opening Brief (Dkt. 9), Defendant's Brief in Support of the Commissioner's Decision (Dkt. 11), Plaintiff's Reply Brief (Dkt. 13) and the Record of the Social Security administrative hearing in this matter (Dkt. 3), cited as T . Having considered the briefing, the record below, and the case file as a whole, the Magistrate Judge now renders the following Report and Recommendation.
I. Procedural History
On May 27, 2020, Sheri L. Brown protectively filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning January 1, 2009. T 19. The claim was denied initially and upon reconsideration. Thereafter, Brown filed a written request for a hearing. On March 22, 2022, ALJ Peri Collins held a telephonic hearing, at which Brown and her counsel appeared, as well as an impartial vocational expert (VE). At the hearing, Brown amended her alleged onset date to April 2, 2020. T 19. The ALJ issued an unfavorable decision on May 26, 2022. T 30.
Brown appealed. The Appeals Council denied her request for review of the ALJ's decision on October 26, 2022, thereby making the ALJ's decision the Commissioner's final administrative decision. T 1. Brown filed this action seeking judicial review of the ALJ's decision. Dkt. 1.
II. Applicable Law
A. Standard of Review
Judicial review of the ALJ's decision is limited. Specifically, the district court reviews: (1) whether the decision was supported by substantial evidence; and (2) if so, whether the Commissioner applied the proper legal standard. Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (citing Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)).
Substantial evidence is more than a scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Copeland, 771 F.3d at 923; Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). It is the role of the Commissioner, and not the courts, to resolve conflicts in the evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). As a result, the court “cannot reweigh the evidence, but may only scrutinize the record to determine whether it contains substantial evidence to support the Commissioner's decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). The court may not substitute its own judgment “even if the evidence preponderates against the [Commissioner's] decision” because substantial evidence is less than a preponderance. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). A finding of “no substantial evidence” will be made only where there is a “conspicuous absence of credible choices” or “no contrary medical evidence.” Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). If the Commissioner applied the proper legal standards and her findings are supported by substantial evidence, they are conclusive and must be affirmed. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
B. Evaluation Process and Burden of Proof
Disability is defined as the “inability to engage in substantial gainful activity by reasons of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step sequential process: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or combination of impairments; (3) whether the claimant's impairment or combination of impairments meets or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment or combination of impairments prevents the claimant from performing past relevant work; and (5) whether the impairment or combination of impairments prevents the claimant from doing any other work. 20 C.F.R. § 416.920. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the analysis. Greenspan, 38 F.3d at 236.
The claimant bears the burden of proof on the first four steps of the sequential analysis. Leggett, 67 F.3d at 565. Once this burden is met, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is capable of performing. Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The Commissioner may meet this burden by the use of opinion testimony of vocational experts or by use of administrative guidelines in the form of regulations. Rivers v. Schweiker, 684 F.2d 1144, 1155 (5th Cir. 1982). If the Commissioner adequately points to potential alternative employment, the burden then shifts back to the claimant to prove that she is unable to perform the alternative work. Id.
III. The ALJ'S Decision
In the written decision, the ALJ determined as a threshold matter that Brown met the insured status requirements of the Social Security Act through December 31, 2025. T 22. The ALJ then engaged in the standard five-step sequential process, finding at step one that Brown had engaged in substantial gainful activity since April 2020 but there had a been a continuous 12-month period during which Brown did not engage in substantial gainful activity. T 22.
At step two, the ALJ found Brown has the following severe impairments: degenerative disc disease; scoliosis; arthritis; obesity; migraine headaches; history of carpal tunnel syndrome status post release surgeries. T 22. The ALJ also found Brown has several nonsevere impairments. T 22. Specifically, the ALJ found Brown's medically determinable mental impairments of depression and anxiety, considered singly and in combination, do not cause more than minimal limitation in Brown's ability to perform basic mental work activities and are therefore nonsevere. T 22. In making this determination, the ALJ considered the four broad areas of mental functioning set out in the disability regulations for evaluating mental disorders: understanding, remembering, and applying information; interacting with others; concentrating, persisting, and maintaining pace; and adapting and managing oneself. Because Brown's medically determinable mental impairments cause no more than “mild” limitation in any of the functional areas, the ALJ determined they are nonsevere. T 23 (citing 20 C.F.R. § 416.920a(d)(1)).
At step three, the ALJ determined Brown does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d), 404.1525, and 404.1526). T 23.
Before reaching step four, the ALJ determined that Brown retains the residual functional capacity (“RFC”) to perform:
RFC is defined as the most an individual can still do despite their limitations. 20 C.F.R. § 404.1545. The responsibility to determine a claimant's RFC belongs to the ALJ. Id. § 404.1546; Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). In making this determination, the ALJ must consider all the record evidence and determine Plaintiff's abilities despite their physical and mental limitations. 20 C.F.R. § 404.1545. The ALJ must consider the limiting effects of the claimant's impairments, even those that are nonsevere, and any related symptoms. See 20 C.F.R. §§ 404.1529, 404.1545. The relative weight to be given to the evidence, however, is within the ALJ's discretion. See Chambliss v. Massanari, 269 F.3d 520, 523 n.1 (5th Cir. 2001) (citing Johnson v. Bowen, 864 F.2d 340, 347 (5th Cir. 1988)).
light work as defined in 20 CFR 404.1567(b) except she can stand/walk for four hours and sit for six hours in an eight-hour day. She can occasionally climb ramps/stairs but never climb ladders, ropes, or scaffolds. She can occasionally stoop, crouch, crawl, kneel, or balance. She can frequently reach, handle, and finger (no limitations on feeling). She must avoid concentrated exposure to extreme noise and extreme temperatures, which is less than one-third of the workday. No assistive device is medically necessary for ambulation.T 24. Specifically, the ALJ considered all symptoms and the extent to which these symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence. T 24. In making this RFC assessment, the ALJ determined that Brown's statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. T 25.
Continuing on to step four of the sequential evaluation process, the ALJ found Brown was to perform her past relevant work as an escrow officer, which did not require the performance of work-related activities precluded by her RFC. T. 29. Accordingly, the ALJ found Brown had not been under a disability from April 2, 2020 through the date of the decision. T 29.
Brown now appeals from the ALJ's determination that she is not disabled.
IV. Analysis
A. Issues Presented
Brown presents one issue: Whether the ALJ failed to properly evaluate the functional impact of Plaintiff's medically determinable mental impairments and failed to address medical opinion evidence on the issue.
B. Discussion
The regulations set forth a special technique to evaluate the severity of mental impairments. 20 C.F.R § 404.1520a(a). First, the applicant's signs, symptoms, and laboratory findings are examined to determine if the applicant has a medically determinable impairment. 20 C.F.R § 404.1520a)(b)(1). Next, the degree of limitation-rated as none, mild, moderate, marked, or extreme-is evaluated across four broad functional areas: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. 20 C.F.R §404.1520a(b). If the degree of limitation is rated as “none” or “mild,” the ALJ “will generally conclude that [the] impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities.” 20 C.F.R §404.1520a(b)(3). 20 C.F.R §404.1520a(d). If the ALJ determines the impairment is severe but does not meet a specific listing, the ALJ then assesses the claimant's RFC. Id.
First, Brown argues the ALJ legally erred in failing to individually rate each area of functioning (understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself) and merely declared Brown's mental impairments nonsevere because, in the ALJ's view, Brown has “no more than mild limitations.”
Dkt. 9 at 4 (citing T 23). The court disagrees with this reading of the ALJ's decision. The ALJ found Brown had no more than mild limitations in each of the four areas of functioning. T 23. The ALJ then briefly addressed each area of functioning and her reasoning. T 23. The ALJ then concluded Brown's limitations were mild and thus nonsevere. T 23. Although Brown argues the ALJ made a legal error, Brown actually takes issue with the finding the ALJ reached, not how the ALJ reached that finding.
Second, Brown argues that the ALJ legally erred in failing to consider whether and how her mental limitations affected her RFC. The ALJ stated that the RFC “reflects the degree of limitation the undersigned has found in the ‘paragraph B' mental function analysis.” T 23. Here, Brown argues the ALJ ignored the only medical opinion of record as to the limiting effects of Brown's mental impairments. Brown argues the ALJ declined to address Dr. Kim's July 28, 2021 opinion that Brown “is occasionally precluded from performing work with even very short and simple instructions and working with or near others without being distracted, is limited in her ability to accept instruction and criticism, would frequently be precluded from working with detailed instructions and maintaining attendance, and has no ability to adapt to stress and change, maintain attention/concentration for extended periods, or sustain an ordinary routine.” Dkt. 9 at 8 (citing T 2080). However, the ALJ did generally consider Dr. Kim's opinions and did not find them persuasive. T 28 (citing T 1372-71, 2080). In part, she faulted Dr. Kim for relying too heavily on Brown's self reporting, T 28, which the ALJ found not consistent with the medical evidence and other evidence in the record, T 25. Again, Brown attempts to cast her factual dispute as a legal error.
The cases Brown relies on also bolster the court's finding Brown is disguising her evidentiary dispute as a legal issue. Brown relies on the progeny of Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). In Stone, the Fifth Circuit considered the appeal of a denial of disability based on the ALJ's determination at step two of the five-step sequential evaluation process that the plaintiff did not have a severe impairment as defined by the Regulations. 752 F.2d at 1100. The Fifth Circuit determined that the use of “severe impairment” in the Regulations was inconsistent with the statute because it would allow the Commissioner to deny benefits to individuals who would otherwise be found disabled under the statute. Id. at 1104-05. The Fifth Circuit then reiterated its construction of the severity: “[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.” Id. at 1101. Thus Stone, and the cases that followed, involved the Commissioner applying a different definition of “severe” than what the Fifth Circuit had mandated. Following Stone, the Commissioner revised the relevant regulations in light of Stone. The Fifth Circuit recently held those revised regulations comport with its case law. See Jeansonne v. Saul, 855 Fed.Appx. 193, 196 (5th Cir. Apr. 12, 2021) (citing Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021)). But here, unlike in Stone and the cases that followed, the ALJ applied the correct standard to determine whether Brown's limitations are severe.
Brown cites evidence in the record that her mental limitations are severe. See Dkt. 9 at 5. But many of her citations are to duplicate copies of the same medical records. Others go to Brown's “long history of depression” and anxiety, which predate her alleged onset date and coexisted with Brown's substantial gainful employment. And most are Brown's own self reports or doctors' notes of her reports. It appears that Brown went through the medical records and cited any time she told a provider, or a provider observed, that she was anxious or depressed.
What Brown does not cite are specific treatment records for persistent and intractable mental health limitations.
Brown obviously does not agree with the Commissioner's final determination. But her attempts to cast her factual disagreement as legal error fail. The ALJ did not commit legal error and her decision is based on more than a scintilla of evidence.
V. Recommendation
It is the court's duty to determine whether the Commissioner's decision is supported by substantial evidence and was reached through proper legal standards. See Copeland, 771 F.3d at 923. Based on the foregoing analysis, the undersigned RECOMMENDS the Commissioner's decision be AFFIRMED in all aspects.
VI. Objections
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this Report and Recommendation must file specific written objections within fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1) (2014); FED. R. CIV. P. 72(B). TO BE SPECIFIC, AN OBJECTION MUST IDENTIFY THE SPECIFIC FINDING OR RECOMMENDATION TO WHICH OBJECTION IS MADE, STATE THE BASIS FOR THE OBJECTION, AND SPECIFY THE PLACE IN THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION WHERE THE DISPUTED DETERMINATION IS FOUND. AN OBJECTION THAT MERELY INCORPORATES BY REFERENCE OR REFERS TO THE BRIEFING BEFORE THE MAGISTRATE JUDGE IS NOT SPECIFIC. FAILURE TO FILE SPECIFIC WRITTEN OBJECTIONS WILL BAR THE AGGRIEVED PARTY FROM APPEALING THE FACTUAL FINDINGS AND LEGAL CONCLUSIONS OF THE MAGISTRATE JUDGE THAT ARE ACCEPTED OR ADOPTED BY THE DISTRICT COURT, EXCEPT UPON GROUNDS OF PLAIN ERROR. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).